The Supreme Court has ruled in favour of an unmarried woman who was denied payments from her late partner’s pension scheme. While the case concerns the Local Government Pension Scheme (LGPS), it may lead to a reconsideration of barriers to awarding a survivor’s pension which may exist in the private sector. Solicitor Becky Ryding explores the details.
Ms Brewster and her partner Mr McMullen lived together for 10 years and owned their own home. The couple became engaged on Christmas Eve in 2009 and Mr McMullen died suddenly two days later.
At the time of his death Mr McMullan had worked for Translink, which runs Northern Ireland’s public transport services, for 15 years. Throughout that time Mr McMullen had been a member of the LGPS.
Under the regulations which govern the LGPS, an unmarried cohabiting partner has to be nominated using a designated form by the member during his or her lifetime to be eligible for a survivor’s pension. A survivor is also required to demonstrate that he or she cohabited with a member for at least two years before the date on which the member returned the nomination form and for two years before the date of death.
Although Ms Brewster had cohabited with Mr McMullen for over two years, Mr McMullen had not completed the necessary nomination form. Ms Brewster was therefore denied a survivor’s pension simply because Mr McMullen had not nominated her, on the appropriate form, to receive the benefits.
Ms Brewster claimed she had been discriminated against because she was a cohabitant and not a spouse. She applied for a judicial review of the requirement to complete a nomination form, arguing that it breached the European Convention on Human Rights. She was successful in the High Court of Justice in Northern Ireland where the judge said it was ‘irrational and disproportionate to impose a disqualifying hurdle of this kind.’ However, that decision was overturned on appeal. The case then headed to the Supreme Court for a final decision.
The Supreme Court decided that Ms Brewster was entitled to receive a survivor’s pension under the LGPS, saying that the requirement to complete a nomination form was unlawful discrimination on the basis of Ms Brewster’s status, because a married member would not have had to submit such a form.
The court considered that the very reason long-term cohabitants were included in the regulations as potential recipients of survivors’ pensions was to give them equal treatment with married couples. While it made sense to require proof of cohabitation, this was required to be provided by the survivor in any event, so requiring the submission of a nomination form did not add anything and could potentially penalise a cohabitant.
What does the case mean for others?
The requirement for a nomination form in the LGPS in England and Wales and in Scotland has already been removed under the equivalent regulations. However, it is likely that other public sector schemes may now consider amending their rules in light of the judgment so unmarried cohabitants can be eligible for survivors’ pensions without having been opted in.
In the private sector, the case may prompt pension schemes and their employers to review any barriers to awarding survivors’ pensions to long-term cohabitants.
For further information, please contact:
Michael Collins, partner, Pensions
T: 0121 234 0236
 Brewster, re Judicial Review (Northern Ireland)  UKSC 8
 Regulation 24 of the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations (Northern Ireland) 2009 (SR 2009/32)
 Brewster, Re Judicial Review  NIQB 85
 Brewster v Northern Ireland Local Government Officers’ Superannuation Committee  NICA 54
 The Local Government Pension Scheme Regulations 2013 (SI 2013/2356) and The Local Government Pension Scheme (Scotland) Regulations 2014 (SSI 2014/164)